Belilos v Switzerland (Application No. 10328/83)Belilos v Switzerland (Application No. 10328/83)

Facts

The facts of the case as summarised in the European Court of Human Rights: Case of Belilos vs. Switzerland:
9. Mrs. Marlène Belilos, who is a Swiss citizen, lives in Lausanne and was a student there at the material time.

1. The Lausanne Police Board

10. In a report of 16 April 1981, the Lausanne police laid an information against her for having contravened the municipality’s General Police Regulations by having taken part in a demonstration in the streets of the city on 4 April for which permission had not been sought in advance. The march had been organised by the “Lausanne bouge” (“Lausanne on the move”) movement, which on the preceding days had distributed leaflets calling on people to join the demonstration, and some 60 or 70 people had taken part; they were requesting that the municipality should provide an autonomous youth centre.

At a sitting held on 29 May, the municipal Police Board, in the applicant’s absence, imposed on her a fine of 200 Swiss francs (CHF).

11. Mrs. Belilos lodged an application under sections 36 et seq. of the Vaud Municipal Decisions Act of 17 November 1969 to have that decision set aside, and the Police Board held an initial hearing on 14 July. After reading out the police report, it heard the defendant and then the policemen who had laid the information. In view of the applicant’s explanations, the Board adjourned its investigation of the case to a later date in order to be able to hear a witness. On 26 August, it gave Mrs. Belilos a further hearing, and also heard evidence from her former husband as a witness. He stated that at the material time he was with his ex-wife in a Lausanne café, where he had handed over to her the maintenance payment for their child.

12. The Police Board gave its decision on 4 September “without the interested parties being present”. In the “As to the facts” part of its decision, it described the convening, the course and the consequences of the relevant demonstration; it went on to list the allegations made by Mrs. Belilos, who inter alia challenged the legitimacy of the body giving judgment and denied that she had taken part in the demonstration; thirdly, it mentioned the evidence given by the defendant’s ex-husband; and, lastly, it noted that the policemen had confirmed their report and categorically denied the applicant’s claim that she had not taken part.
In the “As to the law” part of its decision the Police Board noted that its jurisdiction could not be disputed and it concluded that it had “satisfied itself in the course of its inquiries that the defendant [had] indeed participated in the demonstration on 4 April 1981″. Having regard to the fact, on the one hand, that Mrs. Belilos had not played an active role but, on the other hand, that this was not a first offence, the Board reduced the fine to 120 CHF; it also ordered her to pay costs of 22 CHF.

The decision was notified to the applicant by registered letter on 15 September.

2. The Criminal Cassation Division of the Vaud Cantonal Court

13. Mrs. Belilos applied to the Criminal Cassation Division of the Vaud Cantonal Court to have that decision declared null and void. She claimed principally that in view of the requirements of Article 6 (art. 6) of the Convention, the Police Board had no power to make a determination of the disputed offence; and in any event, she asked the court to hear her former husband and to redetermine the facts fully. The Criminal Cassation Division dismissed the appeal on 25 November 1981, holding:

“(…)
The applicant argued that the decision was not compatible with Art. 6 (art. 6) of the European Convention on Human Rights (ECHR), which enshrines the right to a hearing by an independent and impartial tribunal established by law, and that the reservations made when Switzerland acceded to the Convention did not allow an administrative authority, a fortiori where it was an agency of the executive that was judge in its own cause, to determine a criminal charge, the judicial review by the Cassation Division being moreover inadequate.

In a judgment of 9 June 1980, in the case of Marlène Belilos and Others, this court stated that by virtue of the reservations made by Switzerland, proceedings before an administrative authority relating to the determination of a criminal charge were not covered by the obligation to provide a public hearing and to pronounce judgment publicly (see also Cass.: Leonelli, 31 July/16 October 1981; Christinat, 23 May/6 August 1981).

As regards Art. 6 para. 1 (art. 6-1) ECHR, Switzerland made the following declaration (RS [Compendium of Federal Law] O.101, p. 25): ‘The Swiss Federal Council considers that the guarantee of fair trial in Art. 6, paragraph 1 (art. 6-1), of the Convention, in the determination of … any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to … the determination of such a charge.’

In its communication of 4 March 1974 concerning the Convention for the Protection of Human Rights and Fundamental Freedoms, the Federal Council stated that where the decision taken by an administrative authority could be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en nullité), the question arose whether that review procedure satisfied the requirements of Art. 6 (art. 6) of the Convention.

It answered this question in the affirmative, as Art. 6 para. 1 (art. 6-1) was intended only to ensure ultimate control by the judiciary, and the judicial element of a fair trial seemed to be sufficiently ensured in Swiss law as the Federal Court had derived from the right to a hearing rules on the administration of justice which corresponded to those listed in Art. 6 (art. 6) of the Convention (FF [Federal Gazette] 1974 I p. 1032, Communication).

The fact that appeal proceedings are in written form without any oral argument or taking of evidence is not contrary to Art. 6 (art. 6) ECHR (Cassation Division of the Federal Court: Risse, 14.9.1981).

The Cassation Division therefore carries out the ultimate control by the judiciary required by the European Convention on Human Rights, subject to the reservations made by Switzerland, even if it cannot hear witnesses.
…”

3.   The Federal Court

14.   The applicant lodged a public-law appeal against this decision with the Federal Court. In her submission, Switzerland’s interpretative declaration in respect of the Convention (see paragraph 29 below) did not mean that an administrative authority such as the Police Board was empowered to determine the merits of a criminal charge. Such a jurisdiction was conceivable only if judicial review was ultimately available. This was not so in the present case, however, as the Criminal Cassation Division of the Vaud Cantonal Court and the Federal Court had limited powers, which did not normally allow them to review questions of fact (on which the Police Board’s findings were final), for example by examining witnesses. Furthermore, under section 12 of the Vaud Municipal Decisions Act the municipality could delegate its powers to a senior police official, who was an agent of the executive; that being so, the Police Board was acting as judge in its own cause.

15. On 2 November 1982, the Federal Court (1st Public-Law Division) delivered a judgment dismissing the appeal on the following grounds:

“…

2. The guarantee of a fair trial provided for in Article 6 § 1 (art. 6-1) ECHR [European Convention on Human Rights] lays down inter alia that ‘everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law…’.

(a) The sole issue raised by the appellant’s complaint is whether Article 6 (art. 6) ECHR precludes proceedings whereby the facts are established by a body such as the Police Board, which is not an independent tribunal. Contrary to that Board’s statement in its ruling of 18 January 1982, the appellant did not claim, even by implication, that the Police Board was in this case an (administrative) body lacking impartiality. In any event, such a complaint was not formulated in terms sufficiently clear with regard to section 90(1)(b) OJ [Federal Judicature Act].

(b) The scope of Article 6 § 1 (art. 6-1) ECHR must be examined in the light of Switzerland’s interpretative declaration, according to which: ‘the Swiss Federal Council considers that the guarantee of fair trial in Article 6 § 1 (art. 6-1) of the Convention, … is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities …’. (Article 1 § 1 (a) of the Federal Decree of 3 October 1974 approving the ECHR, RO [Official Collection of Federal Statutes] 1974, 2149.) In its communication of 4 March 1974 to the Federal Assembly, the Federal Council noted that this interpretative declaration was formulated precisely with a view to ‘cases in which the decision taken by an administrative authority may be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en nullité)’, on the basis of the interpretation of Article 6 § 1 (art. 6-1) given by the President of the European Commission of Human Rights (FF 1974 I p. 1032). The Federal Court finds no grounds for departing from that interpretative declaration (ATF [Judgments of the Swiss Federal Court] 107 Ia 167), even though its validity and its scope have been contested by academic writers (D. Brandle, Vorbehalte und auslegende Erklärungen zur europaïschen Menschenrechtskonvention, Zürich thesis 1978, pp. 113-114). Moreover, the European Court of Human Rights has also acknowledged that Article 6 § 1 (art. 6-1) is complied with in so far as a decision of an administrative authority may be subject to ultimate control by the judiciary, since the guarantee of a fair trial must be assessed having regard to the entire procedure (ATF 98 Ia 238; cf. J. Raymond, ‘La Suisse devant les organes de la CEDH’, in RDS [Revue de droit suisse] 98/1979 II p. 67, and the decisions cited therein; D. Poncet, La protection de l’accusé par la Convention européenne des Droits de l’Homme, p. 29, no. 78).

3. The Vaud legislature used the right conferred on cantons by Article 345 § 1(2) CC [Swiss Criminal Code] to allow certain minor offences to be tried by the municipal authority (section 45 of the Local Authorities Act of 28 February 1956; sections 1 et seq. MDA [Municipal Decisions Act]). According to section 41 MDA, judicial review of such municipal decisions is effected by the Cassation Division of the Cantonal Court, which may determine both whether the correct procedure has been followed (in the case of a recours en nullité – section 43 MDA) and whether the law has been properly applied (in the case of a recours en réforme – section 44 MDA). It does not therefore have full competence to re-examine the facts. However, that is not necessary under Article 6 § 1 (art. 6-1) ECHR provided that appeal lies to a judicial authority which not only reviews the correctness of the procedure – including ‘whether there are serious doubts as to the facts found’ (section 43 (e)) – but may also be called upon to consider complaints of ‘incorrect application of the law’ and of ‘misuse of discretion in the application of the law’ (section 44). The Cantonal Court therefore enjoys a much more extensive power of review than the Federal Court in a public-law appeal, where jurisdiction is restricted to ensuring that a decision is not arbitrary (cf. Schubarth, Die Artikel 5 und 6 (art. 5, art. 6) der Konvention, insbesondere im Hinblick auf das schweizerische Strafprozessrecht, RDS 94/1975 I, p. 498, nos. 119-122), since the appeal which lies is not ‘a mere cassation procedure’ (J. Raymond, op. cit., pp. 68-69, no. 81). Moreover, where the Cantonal Cassation Division quashes a decision because there are serious doubts as to the facts found (section 43(e) MDA), it may request the municipal authority, to which it remits the case (section 52 MDA), to carry out additional investigative measures. That in itself is sufficient to show that the ultimate control by the judiciary of municipal decisions in the Canton of Vaud is in conformity with Article 6 § 1 (art. 6-1) ECHR, as interpreted in accordance with the declaration made by Switzerland. The view advanced by P. Bischofberger, who appears to argue that ultimate judicial control should cover both the law and the facts (Die Verfahrensgarantien der Europaïschen Konvention zum Schutze der Menschenrechte und Grundfreiheiten (Art. 5 und 6) (art. 5, art. 6) in ihrer Einwirkung auf das schweizerische Strafprozessrecht, Zürich thesis 1972, pp. 50-51), is not justified in view of the meaning of the Federal Council’s interpretative declaration, although it would be desirable for offences of the kind at issue to be tried by a criminal court.

Moreover, the appellant did not claim that the judicial review of the instant case by the Cassation Division of the Cantonal Court was open to criticism regarding its examination of the lawfulness of the Police Board’s decision of 4 September 1981.” (Judgments of the Swiss Federal Court, vol. 108, Ia, pp. 313-316).

Reasoning of the Court

2. Compliance with Article 64 (art. 64) of the Convention

51. The Court must accordingly ascertain whether the relevant declaration by Switzerland satisfied the requirements of Article 64 (art. 64) of the Convention.

(a) Article 64 § 1 (art. 64-1)

52. Before the Commission the applicant conceded that the interpretative declaration was not a reservation of a general character, but before the Court she submitted the opposite. She now maintained that the declaration sought to remove all civil and criminal cases from the judiciary and transfer them to the executive, in disregard of a principle that was vital to any democratic society, namely the separation of powers. As “ultimate control by the judiciary” was a pretence if it did not cover the facts, such a system, she claimed, had the effect of excluding the guarantee of a fair trial, which was a cardinal rule of the Convention. Switzerland’s declaration accordingly did not satisfy the basic requirements of Article 64 (art. 64), which expressly prohibited reservations of a general character and prohibited by implication those which were incompatible with the Convention.

53. The Government relied on the two criteria set forth by the Commission in its report of 5 May 1982 in the Temeltasch case and asserted that Switzerland’s declaration was not of a general character. They argued, in the first place, that it referred expressly to a specific provision of the Convention, paragraph 1 of Article 6 (art. 6-1), even if it inevitably had consequences for paragraphs 2 and 3 (art. 6-2, art. 6-3), which contained guarantees that were “constituent elements, among others, of the general notion of a fair trial” (see the Colozza judgment of 12 February 1985, Series A no. 89, p. 14, § 26). In the second place, they argued that it was worded in a way that made it possible to determine its scope clearly and that was sufficiently precise for other States Parties and for the Convention institutions. The Federal Council’s intention had been to limit the extent of the guarantee of a fair trial, in particular in cases in which an administrative authority determined a criminal charge. It had in good faith chosen the expression “ultimate control by the judiciary” to denote a review of the cassation type, initiated by means of an application for a declaration of nullity  pourvoi en nullité) and confined to questions of law, i.e. examination of the propriety of the public authority’s decision from the point of view of its conformity with the law. It had thus faithfully paraphrased – and extended to the criminal aspect of Article 6 (art. 6) – the argument put forward by Mr. Fawcett on behalf of the Commission minority in the Ringeisen case. It was, moreover, the Government continued, wrong to criticise the declaration – some fifteen years after it had been made – for being general and vague, on the basis primarily of the case-law subsequently developed by the Convention institutions, especially by the Court in its judgment of 10 February 1983 in the Albert and Le Compte case (Series A no. 58). Lastly, the concept of “ultimate control by the judiciary” was not unknown to international human-rights law, as was shown by France’s reservation to Article 2 of Protocol No. 7 (P7-2) to the Convention. At the hearing before the Court the Government mentioned a third point: compatibility with the object and purpose of the Convention. They considered such compatibility to be beyond doubt in the instant case, as the declaration related only to a particular aspect – not the substance – of the right to a fair trial.

54. The Commission recognised that it was necessary to take account of two circumstances: firstly, the preparatory work which preceded ratification, from which it emerged that  Switzerland wanted to restrict the concept of a fair trial to a judicial review which did not entail a full determination on the merits; secondly, the stage of development of the case-law of the Convention institutions in 1974 – the Court had not yet stated that Article 6 § 1 (art. 6-1) guaranteed the “‘right to a court’ … and [to] a determination by a tribunal of the matters in dispute …, both for questions of fact and for questions of law” (see the Albert and Le Compte judgment previously cited, Series A no. 58, p. 16, § 29). However, the Commission continued, the words “ultimate control by the judiciary” were ambiguous and imprecise. They created great uncertainty as to the effects of the declaration concerned on the application of paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3), particularly as regards decisions in criminal matters by administrative authorities. In the Commission’s view, the declaration appeared to have the consequence that anyone “charged with a criminal offence” was almost entirely deprived of the protection of the Convention, although there was nothing to show that this had been Switzerland’s intention. At least in respect of criminal proceedings, therefore, the declaration had general, unlimited scope.

55. The Court has reached the same conclusion. By “reservation of a general character” in Article 64 (art. 64) is meant in particular a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. While the preparatory work and the Government’s explanations clearly show what the respondent State’s concern was at the time of ratification, they cannot obscure the objective reality of the actual wording of the declaration. The words “ultimate control by the judiciary over the acts or decisions of the public authorities relating to [civil] rights or obligations or the determination of [a criminal] charge” do not make it possible for the scope of the undertaking by Switzerland to be ascertained exactly, in particular as to which categories of dispute are included and as to whether or not the “ultimate control by the judiciary” takes in the facts of the case. They can therefore be interpreted in different ways, whereas Article 64 § 1 (art. 64-1) requires precision and clarity. In short, they fall foul of the rule that reservations must not be of a general character.

(b) Article 64 § 2 (art. 64-2)

56. In the applicant’s submission, the interpretative declaration did not comply with Article 64 § 2 (art. 64-2) either, as it did not contain “a brief statement of the law concerned”. No doubt the Government would have encountered practical difficulties in drawing up a list of the cantonal and federal laws which were not compatible with Article 6 § 1 (art. 6-1) at the time, but that did not justify disregarding an express condition of the Convention.

57. The Government conceded that the interpretative declaration was not accompanied by a “brief statement of the law concerned”, but they maintained that the failure to comply with that formality could not be of any consequence. They pointed to the very flexible practice in the matter which they claimed had evolved with the tacit consent of the depositary and of the other Contracting States, and they referred to the cases of Ireland (reservation in respect of Article 6 § 3 (c) (art. 6-3-c)) and Malta (declaration of interpretation of Article 6 § 2 (art. 6-2)). Above all, they argued that Article 64 § 2 (art. 64-2) did not take account of the specific problems which faced federal States and which could prove virtually insuperable. In order to fulfil the obligation, Switzerland would have had to mention most of the provisions in the twenty-six cantonal codes of criminal procedure and in the twenty-six cantonal codes of civil procedure, and even hundreds of municipal laws and regulations. This laborious exercise would have confused the situation instead of clarifying it. In sum, compliance with the letter of Article 64 § 2 (art. 64-2) would have entailed more drawbacks than advantages and might even have given rise to serious misunderstandings about the scope of Switzerland’s international undertaking. In any case, the references to the Swiss Criminal Code in the Federal Council’s supplementary report of 23 February 1972 to the Federal Assembly satisfied the requirement of Article 64 § 2 (art. 64-2) at least indirectly.

58. In the Commission’s view, the undeniable practical difficulties put forward by the Government could not justify the failure to comply with paragraph 2 of Article 64 (art. 64-2). The latter applied to all the States Parties without any distinction, whether they were unitary or federal and whether or not they had a unified body of procedural law. Referring to its report of 5 May 1982 in the Temeltasch case, the Commission emphasised two points. Firstly, paragraph 2 of Article 64 (art. 64-2) had, in its opinion, to be read in the light of paragraph 1 (art. 64-1), which applied only to a “law then in force” and prohibited reservations of a general character; the details that the States concerned were asked to provide helped to prevent acceptance of such reservations. Secondly, the obligation to append to the reservation a brief statement of the laws that a State wished to retain enabled the other Contracting Parties, the Convention institutions and any other interested party to acquaint themselves with such legislation. That feature was of not inconsiderable value. The scope of the rule whose application the State wished to prevent by means of a reservation or interpretative declaration was a relevant factor here, because the wider the rule’s scope, the greater was the need to include a statement of the law.

59. The Court concurs on the whole with the Commission’s view on this point. It would add that the “brief statement of the law concerned” both constitutes an evidential factor and contributes to legal certainty. The purpose of Article 64 § 2 (art. 64-2) is to provide a guarantee – in particular for the other Contracting Parties and the Convention institutions – that a reservation does not go beyond the provisions expressly excluded by the State concerned. This is not a purely formal requirement but a condition of substance. The omission in the instant case therefore cannot be justified even by important practical difficulties.

C. Conclusion

60. In short, the declaration in question does not satisfy two of the requirements of Article 64 (art. 64) of the Convention, with the result that it must be held to be invalid. At the same time, it is beyond doubt that Switzerland is, and regards itself as, bound by the Convention irrespective of the validity of the declaration. Moreover, the Swiss Government recognised the Court’s competence to determine the latter issue, which they argued before it. The Government’s preliminary objection must therefore be rejected.

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